[Cite as State v. Getzinger,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-12-06

v.

NICHOLAS B. GETZINGER, OPINION

DEFENDANT-APPELLANT.

Appeal from Napoleon Municipal Court Trial Court No. 10 TRD 238

Judgment Affirmed

Date of Decision: May 28, 2013

APPEARANCES:

George C. Rogers for Appellant

Paul A. Skaaff for Appellee Case No. 7-12-06

SHAW, J.

{¶1} Defendant-appellant, Nicholas B. Getzinger (“Getzinger”), appeals the

March 22, 2012 judgment of the Napoleon Municipal Court finding Getzinger

guilty of disorderly conduct and sentencing him to pay a fine of $150.00.

{¶2} On July 14, 2011, a criminal complaint was filed against Getzinger

alleging he committed disorderly conduct in violation of R.C. 2917.11(A)(2). The

complaint specifically alleged that Getzinger “did recklessly cause inconvenience,

annoyance, or alarm to another, by making unreasonable noise or an offensively

coarse utterance, gesture, or display or communicating unwarranted and grossly

abusive language to any person.” (Doc. No. 9). Notably, the complaint recited

verbatim the language of the statute. See R.C. 2917.11(A)(2). Getzinger

subsequently pleaded not guilty to the charge.

{¶3} On August 29, 2011, Getzinger filed a motion to dismiss the

complaint. Specifically, Getzinger asserted that the complaint omitted an essential

“element” of the offense by failing to allege that the language used by Getzinger

rose to the level of “fighting words.” In particular, Getzinger argued that the

complaint must have also alleged that the “words by their utterance, are likely to

inflict injury or provoke an immediate retaliating breach of the peace,” which is

the legal standard for “fighting words.” See In re T.W., 3d Dist. No. 1-12-16,

, citing Cincinnati v. Karlan,

, 109–110

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(1974)(setting forth the standard for identifying “fighting words”). Getzinger

argued that because the complaint omitted the “fighting words” language, it was

constitutionality infirm because it failed to state all the essential elements of the

offense and thus also failed to comply with the notice requirements of Crim.R. 3.

(Doc. No. 12). The trial court took this motion under advisement and proceeded

to trial.

{¶4} On October 13, 2011, a trial to the court was held. At the conclusion

of the evidence, the trial court gave the parties seven days to file briefs with the

court regarding Getzinger’s motion to dismiss.

{¶5} On November 15, 2011, the trial court overruled Getzinger’s motion

to dismiss finding that the complaint tracked the language of R.C. 2917.11(A)(2)

and was not defective for failing to include the additional “fighting words”

language. In the same judgment entry the trial court also found that “the State met

its burden of proof beyond a reasonable doubt on each and every element of the

offense charged”. (JE, Nov. 15, 2011 at 3).

{¶6} On December 22, 2011, the trial court sentenced Getzinger to pay a

fine of $150.00 plus court costs.

{¶7} Getzinger appealed the judgment of the trial court. This Court

dismissed the appeal because the judgment entry did not specify the means of

conviction. See State v. Getzinger, 3d Dist. No. 7-12-01 (JE, Feb. 2, 2012).

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{¶8} On March 22, 2012, the trial court filed another judgment entry

specifying that it found Getzinger guilty of violating R.C. 2917.11(A)(2) and

imposed the same sentence of a $150.00 fine plus court costs. Getzinger

subsequently appealed this judgment to this Court.

{¶9} On August 2, 2012, Getzinger’s Attorney filed a motion with this

Court stating that the audio recording from the trial court proceedings was

compromised and the court reporter was unable to prepare a transcript.

Getzinger’s Attorney requested an extension of time to write “a statement of facts

or summary of the testimony.” (Mot. Aug. 2, 2012 at 2).

{¶10} On August 6, 2012, this Court issued a judgment entry granting

Getzinger’s Attorney leave to supplement the record with a statement of evidence

pursuant to App.R. 9(C).

{¶11} In lieu of a transcript, Getzinger’s Attorney submitted a document

entitled “Appellant’s App.R. 9(C) Statement of Evidence Supplementing the

Record Pursuant to Appellate Court Order of August 8, 2012 [sic].” After a brief

summary of the testimony given at trial, Getzinger’s Attorney concludes this

document by stating “while the above statement of evidence is somewhat sketchy,

it does accurately summarize the salient points made during the trial as shown by

my notes and recollection.” (Id. at 2).

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{¶12} The foregoing “Statement of Evidence” contained a certificate of

service indicating that opposing counsel was served with a copy. However, there

is nothing in the record demonstrating that this document was created as a formal

agreement between the parties, and there is nothing in the record demonstrating

that this document was formally submitted to the trial court. Accordingly, there is

nothing in the record to establish that the trial court approved Getzinger’s

“Statement of Evidence” as required by App.R. 9(C).

{¶13} Getzinger now appeals, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN FAILING TO DISMISS THE COMPLAINT UPON DEFENDANTS [sic] MOTION; FOR FAILURE TO ALLEGE ALL THE ELEMENTS OF AN OFFENSE REQUIRED TO BE PROVEN UNDER R.C. 2917.11(A)(2) AS AUTHORITATIVELY CONSTRUED BY THE OHIO SUPREME COURT IN State v. Hoffman, (1979) 57 OHIO ST.2d 129, AS NECESSARY TO MAKE SUCH STATUTE CONSTITUTIONAL.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANTS’ [sic] MOTION TO DISMISS AT THE CONCLUSION OF THE CASE, FOR INSUFFICIENCY OF THE EVIDENCE TO SHOW HIS MERE WORDS BY THEIR VERY UTTERANCE TENDED TO INCITE AN IMMEDIATE BREACH OF THE PEACE AS NO BREACH OCCURRED AND THE VERBAL EXCHANGE WAS INITIATED BY THE COMPLAINT.

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First Assignment of Error

{¶14} In his first assignment of error, Getzinger claims the complaint

alleging he committed disorderly conduct in violation of R.C. 2917.11(A)(2) is

constitutionally defective because the “fighting words” standard is omitted from

the face of the complaint. Specifically, Getzinger argues that the Supreme Court

of Ohio in State v. Hoffman,

(1979), “authoritatively construed”

the offense defined in R.C. 2917.11(A)(2) to also require the “words by their

utterance, are likely to inflict injury or provoke an immediate retaliating breach of

the peace” be proven as an additional “element” of the offense.

{¶15} In making this argument, it is apparent that Getzinger misconstrues

the Supreme Court’s holding in State v. Hoffman, in which the Court discussed the

interaction between disorderly conduct based on speech and the First

Amendment’s protection of free speech. In Hoffman, the Supreme Court stated

that “a person may not be punished under R.C. 2917.11(A)(2) for ‘recklessly

caus(ing) inconvenience, annoyance, or alarm to another,’ by making an

‘offensively coarse utterance,’ or ‘communicating unwarranted and grossly

abusive language to any person,’ unless the words spoken are likely, by their very

utterance, to inflict injury or provoke the average person to an immediate

retaliatory breach of the peace.” (Id. at 133). The Court in Hoffman reversed the

defendant’s conviction because the trial court failed to “take evidence” to

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determine if the defendant’s conduct rose to the level of “fighting words.” (Id.).

However, the Supreme Court did not specifically characterize this inquiry as

additional “element” of the offense nor did it make any ruling regarding the

sufficiency of the complaint alleging a violation of R.C. 2917.11(A)(2).

{¶16} Moreover, “the requirements of an indictment may be met by reciting

the language of the criminal statute.” State v. Childs,

(2000), citing State v. Murphy,

(1992). Here, the criminal

complaint recited verbatim the language contained in R.C. 2917.11(A)(2).

Furthermore, we note that the record in this case demonstrates that the trial court

complied with the directives of the Supreme Court in Hoffman. Accordingly, for

all these reasons, we conclude that the trial court did not err in overruling

Getzinger’s motion to dismiss. The first assignment of error is overruled.

Second Assignment of Error

{¶17} In his second assignment of error, Getzinger challenges the

sufficiency of the prosecution’s evidence to convict him of disorderly conduct in

violation of R.C. 2917.11(A)(2).

{¶18} Before we reach the merits of this assignment of error we note that

App.R. 9 states that the appellant must submit a transcript of the trial court

proceedings they deem necessary to the appellate court for its review. Specifically,

App.R. 9(B)(4) states that “[i]f the appellant intends to present an assignment of

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error on appeal that a finding or conclusion is unsupported by the evidence or is

contrary to the weight of the evidence, the appellant shall include in the record a

transcript of proceedings that includes all evidence relevant to the findings or

conclusion.”

{¶19} If no transcript is available, App.R. 9(C) and (D) provide alternatives

for the appellant. The record indicates that the recording of the transcript was

compromised and could not be transcribed. As a result, Getzinger attempted to

avail himself of App.R. 9(C) which addresses the situation where no transcript or

recording is available:

If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App.R. 10 and the appellee may serve on the appellant objections or propose amendments to the statement within ten days after service of the appellant’s statement; these time periods may be extended by the court of appeals for good cause. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App. R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.

(Emphasis added).

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{¶20} “Approval as contemplated by Appellate Rule 9(C) means that,

whether or not settlement is required, the trial court must determine the accuracy

and truthfulness of a proposed statement of evidence or proceedings and then

approve it. Independent of any agreement or disagreement between the parties,

the trial court has the responsibility, duty, and authority under Appellate Rule 9(C)

to delete, add or otherwise modify portions of a proposed statement of the

evidence or proceedings so that it conforms to the truth and is accurate before it is

approved.” Aurora v. Belinger,

, 2008–Ohio–6772, ¶ 35

(11th Dist.), citing Joiner v. Illuminating Co.,

, (8th

Dist. 1978), syllabus.

{¶21} Here, the record reflects that Getzinger’s counsel prepared a

proposed “Statement of Evidence” from his own recollection and served this

proposed “Statement of Evidence” on the prosecution as required by App.R. 9(C).

The record further indicates that the prosecution did not file any objections and we

note that, for the first time on appeal, the prosecution acknowledges Getzinger’s

“Statement of Evidence” by incorporating the document as part of the appendix in

its appellate brief.

{¶22} However, these circumstances, in our view, are not sufficient to

establish a proper agreement by the Prosecutor to a proposed “Statement of

Evidence” by the defense under App.R. 9(C), which clearly requires any such

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agreement to be established in the trial court prior to the transmission of the record

to the Court of Appeals.

{¶23} Moreover, even if we were to somehow construe the “Statement of

Evidence” to have been agreed to by the prosecution, the “Statement of Evidence”

in this case must fail anyway because there is nothing in the record establishing

that Getzinger’s proposed “Statement of Evidence” was submitted to the trial court

for approval as required by the appellate rule and the trial court’s signature does

not appear on the proposed “Statement of Evidence.” See King v. Plaster,

(3d Dist. 1991)(stating that a reviewing court must presume that a

trial court did not approve the statement of evidence if the trial court fails to sign

the statement). Rather, the record demonstrates that Getzinger simply filed his

proposed “Statement of Evidence” with this Court on appeal. In sum, even an

agreement of the parties is not an acceptable substitute for the trial court’s

approval as required by App.R. 9(C).

{¶24} Therefore, since the proposed “Statement of Evidence” was never

submitted to the trial court for approval, the statement and the filing thereof fail to

comport with the requirements of App.R. 9(C). We further note that a number of

“salient points” included in Getzinger’s proposed “Statement of Evidence” fail to

include and/or even contradict some of the specific factual findings made by the

trial court in its November 15, 2011 Judgment Entry thereby casting doubt on

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whether the trial court would have approved Getzinger’s proposed “Statement of

Evidence” without any modification.

{¶25} Therefore, absent an adequate record of the facts, testimony, and

evidentiary matters necessary to support the second assignment of error, which is

the appellant’s responsibility to provide, this Court is left with no choice but to

presume the validity of the proceedings and affirm trial court’s judgment. See

Knapp v. Edwards Laboratories,

(1980). Accordingly,

Getzinger’s second assignment of error is overruled.

{¶26} Based on the foregoing, the judgment and sentence of the Napoleon

Municipal Court is affirmed.

Judgment Affirmed

ROGERS, J., concurs.

/jlr

WILLAMOWSKI, J., Concurring in Part, and Dissenting in Part.

{¶27} While I concur with the majority’s disposition of the first assignment

of error, I respectfully dissent as to its disposition of the second assignment of

error because I believe that this case is capable of decision on the merits without

the transcript, and in the event that this case is not capable of decision on the

merits without the transcript, unlike the majority, I would accept the Statement of

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Evidence Supplementing the Record, accepted by both sides as the facts herein,

and address the second assignment of error on the merits and invite the majority to

consider and be guided by Lewis v. New Orleans,

,

,

(1974), State v. Hoffman,

(1979), R.A.V. v.

City of St. Paul, Minnesota,

,

,

(1992), and Seven Hills v. Aryan Nations,

(1996).

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